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State v. Muehlenthaler

Court of Appeals of Iowa

February 20, 2019

STATE OF IOWA, Plaintiff-Appellee,
v.
KEVIN JACOB MUEHLENTHALER, Defendant-Appellant.

          Appeal from the Iowa District Court for Story County, Steven P. Van Marel, District Associate Judge.

         Kevin Muehlenthaler appeals his convictions of three counts of sexual exploitation by a school employee.

          Joseph R. Cahill of Cahill Law Offices, Nevada, for appellant.

          Thomas J. Miller, Attorney General, and Thomas J. Ogden, Assistant Attorney General, for appellee.

          Heard by Doyle, P.J., and Mullins and McDonald, JJ.

          MULLINS, JUDGE.

         Kevin Muehlenthaler appeals his convictions of three counts of sexual exploitation by a school employee. Muehlenthaler contends his trial counsel was ineffective in failing to object to: (1) the State's misstatement to the jury about Muehlenthaler's plea; (2) testimony about Muehlenthaler's alleged use of racially insensitive comments; (3) the State's questions which amounted to backdoor hearsay; (4) expert testimony provided by a non-expert; (5) the State's violation of its own motion in limine; and (6) the State's statements concerning Muehlenthaler's failure to testify or produce evidence. Muehlenthaler also claims the trial court erred in admitting into evidence statements he made during a school investigation.

         I. Background Facts and Proceedings

         From the evidence presented at trial, the jury could find the following facts. In the fall of 2013, Muehlenthaler was a part-time band instructor for the North Polk School District. At that time, K.M. was a sixteen-year-old high school senior who volunteered to assist Muehlenthaler with his band classes during her free periods. Her duties included assisting with set up and lessons, providing accompaniment on piano, grading papers, and assisting in a fundraiser. As the fall semester continued, both began sharing personal information about themselves, including family and home life. At some point in November, on a day K.M. was upset about family issues, Muehlenthaler asked for permission and proceeded to hug K.M. From that point on, Muehlenthaler would hug K.M. before she left his classroom for the day. The relationship also included Muehlenthaler making jokes of a sexual nature and divulging information about his sex life with his wife. Both parties then began emailing each other. K.M. continued volunteering during the 2014 spring semester, including volunteering extra hours and days. This resulted in K.M. staying past the period she volunteered for and being late to her next class. Muehlenthaler signed off on her tardy slips.

         In either January or February 2014, Muehlenthaler invited K.M. to his house after an evening basketball game, informing her that his wife would not be there. On this occasion, they sat and laid on his couch with their clothes on, "spooning and cuddling." K.M. also met Muehlenthaler on Valentine's Day in downtown Ames to assist in delivering thank-you cards to businesses that had helped during a school event. After handing out the cards, Muehlenthaler and K.M. sat in his car and talked. On another occasion after Valentine's Day, they met in a store parking lot and cuddled in K.M.'s van. On this occasion, Muehlenthaler reached under K.M.'s shirt and touched her breasts.

         Muehlenthaler and K.M. text messaged one another frequently, including sexual content.[1] At some point in February, while in his classroom, Muehlenthaler asked K.M. if she wanted to have sex. After agreeing, Muehlenthaler and K.M. texted their plans on when and where they planned to have sex. Muehlenthaler and K.M. met at a local motel. K.M. waited in her car as Muehlenthaler went in to purchase a room. On that date, someone checked in under the name of P.S., the name of K.M.'s classmate. This individual paid in cash and there is no record of any identification provided to the motel employee. The motel's policy is to not provide a room without appropriate identification; however, a front desk clerk testified that not all staff have followed this policy. K.M. testified this person was Muehlenthaler. Muehlenthaler gave K.M. the room number after he checked in, and they had sexual intercourse that night. K.M. identified that after Muehlenthaler undressed, she noted that he wears an insulin pump on his right buttock, something she could not see during the day while at school. Muehlenthaler is a diabetic.

         Muehlenthaler and K.M. had sexual intercourse several more times over the course of the next few months, including at Muehlenthaler's house. Their last sexual encounter occurred in mid-July, by which time K.M. had graduated from high school. Muehlenthaler ended the relationship, informing K.M. that he would not be able to be with her anymore because his wife wanted to get pregnant. He gave her a sex toy as a break-up gift to "replace him." At all times during the sexual relationship, Muehlenthaler was employed as a teacher at North Polk. Several times during the relationship, Muehlenthaler told K.M. not to tell because he would lose his job, lose his wife, and get into trouble.

         K.M. first reported the relationship in 2016 after she began college and saw a notice on social media that Muehlenthaler accepted a full-time position at a different school district. She reported the relationship to her college professor, who then made an anonymous third-party report to the principal of Muehlenthaler's new school. School officials from Muehlenthaler's new district received the anonymous report approximately two weeks after Muehlenthaler began working. The principal and superintendent met with Muehlenthaler the morning of August 30 to inquire about the anonymous report and asked Muehlenthaler if he had any information. Muehlenthaler informed the officials that the report must be about his high school helper and gave K.M.'s name. He informed the officials that he had become uncomfortable with the dynamic between himself and K.M. after she shared personal information about herself and family. Muehlenthaler also indicated he reported the situation to officials at North Polk. After the meeting, Muehlenthaler returned to his classroom and taught for the remainder of the day. Ten minutes before the official end of that school day, Muehlenthaler was informed he was being placed on administrative leave pending the outcome of the school investigation. During a formal interview on September 15, Muehlenthaler refused to answer questions and was informed of his right to refuse to answer questions.

         K.M. eventually spoke to the superintendent herself and ultimately to the police. She also turned over the sex toy Muehlenthaler gave her to the police. In March 2017, Muehlenthaler was charged by trial information with four counts of sexual exploitation by school employee, in violation of Iowa Code section 709.15(5)(a) (2013).[2] Prior to the trial in October, the State filed a motion in limine seeking to exclude any evidence of K.M.'s sexual history, which the court granted. During the hearing on the motion in limine, Muehlenthaler's counsel sought the exclusion of evidence of statements made by him to school officials during their investigation into the allegations of an inappropriate student relationship, arguing it would violate Garrity.[3] The court granted the request in part, determining that Muehlenthaler's statements made to school officials after he was informed he would be placed on administrative leave were to be excluded.

         A jury found Muehlenthaler guilty as charged. Muehlenthaler filed post-trial motions in arrest of judgment and for a new trial. He argued there was impermissible burden shifting and claimed insufficiency of the evidence. Further, he argued the testimony of statements he made during a school investigation violated Garrity. The court denied both motions, finding there was sufficient evidence to establish the elements of the offenses, no shifting of the burden of proof, and no Garrity violation.

         The court sentenced Muehlenthaler on each count to an indefinite term of incarceration not to exceed two years to run consecutively. His sentence also included an order to register as a sex offender, placement on the sex offender registry, and a ten-year special sentence pursuant to Iowa Code section 903B.2.

         II. Standard of Review

         We review ineffective-assistance-of-counsel claims de novo. State v. Harrison, 914 N.W.2d 178, 188 (Iowa 2018). Muehlenthaler must show counsel "failed an essential duty and that the failure resulted in prejudice." Id. at 206 (quoting State v. Schlitter, 881 N.W.2d 380, 388 (Iowa 2016)). "[C]ounsel fails his or her essential duty by 'perform[ing] below the standard demanded of a reasonably competent attorney.'" Id. (quoting Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001)). We presume "the attorney performed competently" and "we avoid second-guessing and hindsight." Ledezma, 626 N.W.2d at 142. Muehlenthaler must also demonstrate "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 143 (quoting Strickland v. Washington, 466 U.S. 668, 964 (1984)).

          III. Analysis

         A. Ineffective Assistance of Counsel

         Muehlenthaler makes several claims of ineffective assistance of counsel. We will address each in turn.

         1. Opening Statement

         First, Muehlenthaler contends counsel was ineffective for failing to object and correct a prosecutor's statement after reading the trial information to the jury. A review of the record shows that before beginning its opening statement, the State read the trial information against Muehlenthaler to the jury. After reading all of the offenses charged, the State then stated, "To these charges Mr. Muehlenthaler has entered a plea of guilty." He contends that because his counsel failed to object or correct this misstatement, it prejudiced the jury and he did not receive a fair trial.

         "[A] criminal conviction is not to be lightly overturned on the basis of a prosecutor's comments standing alone, for the statements or conduct must be viewed in context; only by so doing can it be determined whether the prosecutor's conduct affected the fairness of the trial." United States v. Young, 470 U.S. 1, 11 (1985). "Inappropriate prosecutorial comments, standing alone, would not justify a reviewing court to reverse a criminal conviction obtained in an otherwise fair proceeding." Id.

         First, after the jury was selected in this case, the court explained to the jury the sequence of events of the trial. It instructed the jury that the attorneys would make opening statements but those statements were not evidence. The court explained the State would read the trial information about the offenses charged and, again, instructed the jury that the trial information was not evidence. The State then gave its opening statement. Defense counsel followed with an opening statement that ended with him saying at the end of the evidence he would be asking the jury to deliberate and "find Kevin not guilty of each and every count."

         After the close of the evidence, the court instructed the jury. Several jury instructions clearly identify that the jury is the decision-making body of Muehlenthaler's guilt or innocence on each charge, Muehlenthaler is presumed innocent, this presumption remained with him throughout the trial unless the evidence established guilt beyond a reasonable doubt, and, most importantly, Muehlenthaler pled not guilty to all charges. The instructions also reminded the jury of the court's earlier admonition that statements and comments by the attorneys were not evidence and their verdict must be based upon the evidence presented and the jury instructions.

         However, on the record before us, we cannot determine why counsel did not object to the misstatement of his not guilty plea, and thus cannot determine whether counsel's performance fell below that of reasonably competent counsel. Likewise, the record is inadequate to decide the prejudice issue. Consequently, we preserve the claim for possible postconviction-relief proceedings.

         2. Defendant's past racial statements

         Muehlenthaler next contends trial counsel failed to object to testimony from K.M. that Muehlenthaler made racially insensitive comments to her about students at the school. Muehlenthaler claims the testimony was highly prejudicial and inadmissible character evidence which should have resulted in counsel moving for a mistrial.

         A review of the record shows that during K.M.'s direct examination, after being asked about the nature of the jokes Muehlenthaler made while joking around with her, K.M. testified:

And he also said some jokes that made me feel kind of uncomfortable, like when one of the kids who played trumpet, we were having a lesson, and he said that he was sad because his dad was moving back to Mexico, and then when he left the room he snickered and said that his dad was getting deported. And he also told me that when he was in college him and one of his friends would go to KFC and make fun of the black people, and generally just a lot of jokes that I thought were kind of really inappropriate and kind of immature.

         Defense counsel did not object.

         Iowa Rule of Evidence 5.404(b)(1) prohibits the admission of "[e]vidence of a crime, wrong, or other act . . . to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character." To determine if evidence is admissible under rule 5.404(b), it must meet a three step analysis:

(1) the evidence must be relevant and material to a legitimate issue in the case other than a general propensity to commit wrongful acts;
(2) there must be clear proof the individual against whom the evidence is offered committed the bad act or crime; and
(3) if the first two prongs are satisfied, the court must then decide if [the evidence's] probative value is substantially outweighed by the danger of ...

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